The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com

Thursday, May 28, 2009

Justice Scalia and Rumpole

Rumpole is getting all hot and bothered by Justice Scalia's recent decision in Montejo v. Louisiana, overruling Michigan v. Jackson. I don't agree with the result either, but I have taken issue with Rumpole's attack on Scalia as a "dangerous" Justice and with Rumpole's defense of stare decisis.

As an initial matter, as a criminal defense lawyer, Rumpole should be cheering Scalia, who is by far the most friendly Justice to criminal defendants. I'm sure I'm forgetting some of his recent defense friendly opinions, but to name a few:

Crawford v. Washington -- Justice Scalia breathed life back into the Confrontation Clause and did away with some really bad cases allowing prosecutors to get away with convictions based on hearsay.

Begay v. United States -- finding in a concurring opinion that DUI was not a violent felony based on the rule of lenity.

United States v. Gonzalez-Lopez -- Scalia finds (5-4) that a criminal defendant has a right to counsel of his choice. This was his quote at oral argument: “I don’t want a ‘competent’ lawyer. I want a lawyer to get me off. I want a lawyer to invent the Twinkie defense. I want to win.”

United States v. Santos -- Scalia finds that the money laundering statute is ambiguous and rules for criminal defendant that it means proceeds, not profits.

I'll end with Sorich v. United States in which Scalia dissents from denial of cert on honest services case. Here's part of his opinion:

[T]his Court has long recognized the“basic principle that a criminal statute must give fair warning of the conduct that it makes a crime.” Bouie v. City ofColumbia, 378 U. S. 347, 350 (1964). There is a serious argument that §1346 is nothing more than an invitation for federal courts to develop a common-law crime of unethical conduct. But "the notion of a common-law crime is utterly anathema today," Rogers v. Tennessee, 532 U. S. 451, 476 (2001) (SCALIA, J., dissenting), and for good reason. It is simply not fair to prosecute someone for a crime that has not been defined until the judicial decision that sends him to jail. “How can the public be expected to know what the statute means when the judges and prosecutors themselves do not know, or must make it up as they go along?” Rybicki, supra, at 160 (Jacobs, J., dissenting). . . . It may be true that petitioners here, like the defendants in other “honest services” cases, have acted improperly. But “[b]ad men, like good men, are entitled to be tried and sentenced in accordance with law.” Green v. United States, 365 U. S. 301, 309 (1961) (Black, J., dissenting). In light of the conflicts among the Circuits; the longstanding confusion over the scope of the statute; and the serious due process and federalism interests affected by the expansion of criminal liability that this case exemplifies, I would grant the petition for certiorari and squarely confront both the meaning and the constitutionality of §1346. Indeed, it seems to me quite irresponsible to let the current chaos prevail.

(A couple weeks after Scalia wrote this dissent, the Court granted cert in the Conrad Black case to figure out the reach of the honest services statute. I'd bet Rumpole that Scalia will rule for Black, but he still hasn't paid me on the last $100...)

And these are just a few off the top of my head in the last few years. I'm happy when Justice Scalia isn't a prisoner to stare decisis. If he was, we wouldn't have Crawford, Blakely, Gant, etc. I'm glad he's questioning cases that have been on the books for years because the law is more pro-government right now than it has ever been. The pendulum has started swinging back the other way, and it's due in part to Justice Scalia. Yes, criminal defendants are going to lose some too -- like Michican v. Jackson -- but I'll take the above cases with that one. (Has any lawyer ever even filed a Jackson motion to suppress?)

If I had to rank the Justices in order of defense friendly, here's my list:

4 comments:

I've said it before and I'll say it again- It's really not a good idea David to blog after that three martini lunch. it's affects your ability to reason- which as we all know is defined by Justice Scalia (and only Justice Scalia as a cost/benefit analysis. logic has nothing to do with reason in his convoluted world.)

Anyway, we'll have to schedule one of those fancy federal bar luncheons you're always attending and I can't get into. Then we can debate the decisions of Justice S. Of course I'll be muffled in my Rumpole mask, but you could use the advantage.

In all seriousness - doesn't it bother you that he blatantly weighs the rights of defendants against the interests of society? Such a weighing process is antithetical to a true conservative's nature. And have you read his discourse on the benefits of confessions and society's interest in convicting the guilty? It turns upside down the maxim we all live by which is better to let ten guilty people free than convict one innocent man/woman.

Anyway stop bellyaching about your hundred. You get your 600K in fees from the government yet?

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It doesn't make a damn bit of difference what the Supreme Court says...so long as Agents and Cops are taught the precedent, some will continue to come into court and perjure themselves on the close cases so that the search, seizure, confession is admissible. Nobody gives a shit -- prosecutors and judges (unless of course the falsity slaps them in the face publicly so it can't be ignored).

The Southern District of Florida blog is authored by David Oscar Markus, who is a criminal trial and appellate lawyer in Miami, Florida. He frequently practices in federal courts around the country, including his hometown, the Southern District of Florida and the 11th Circuit Court of Appeals.